leges incident to the other. No doubt in practice, the main use of the strip of land of five rods in width, in the greater part of its extent, will be for sustaining the track for the trains to pass over. But such restriction of its use is not found in the act, and therefore, when the corporation have occasion to use any part of such strip of five rods for any of the purposes incident to their creation, it is within their franchise." And, under the law of that state exempting public works from taxation, it was decided, in that case "that this railroad corporation is not liable to taxation for the land, of the width of five rods, located for the road, nor for any buildings or structures erected thereon, so that they be reasonably incident to the support of the railroad, or to its proper or convenient use for the carriage of passengers and the transportation of commodities; and that this includes engine and car houses, depots for the accommodation of passengers, and warehouses for the convenient reception, preservation, and delivery of merchandise, and all goods and articles carried on the road." Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564. That court has, in later cases, continued to recognize the right of a railroad company to occupy, with buildings or other structures, the land acquired for its railroad, so long as the mode of occupation is necessary or proper for the convenient exercise of the privileges and the performance of the functions defined by its charter. Proprietors of Locks & Canals v. Nashua & L. R. Co., 104 Mass. i: Boston Gas Light Co. v. Old Colony & N. R. Co., 14 Allen, (Mass.) 444; Brainard v. Clapp, io Cush. (Mass.) 6; Peirce v. Boston & L. R. Co., 141 Mass. 481; 27 Am. & Eng. R. Cas. 359.

In Illinois Cent. R. Co. v. Wathen, 17 Ill. App. 582, it was held that on land granted for "railroad and depot purposes," the company could permit the erection and use by private parties, without the payment of rent, of elevators, corn cribs, lumber yards, and lime houses which facilitated the business of the company in the receipt, transportation, and discharge of freight. In Western Union Telegraph Co. v. Rich, 19 Kan. 517, it was held that a railroad company may, for its own use in operating its road, construct a telegraph line over and along its right of way, and that by such use of the property it did not subject itself to an additional claim of the original land owner for compensation. The opinion of the court was delivered by Judge BREWER, now an associate justice of the supreme court of the United States. In the course of the opinion it was said: "In short, the railroad company may use its right of way, not merely for its track, but for any other building or erection which reasonably

tends to facilitate its business of transporting freight and passengers, and by such use in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damages to the original land owner. The authorities support the conclusion that a railroad company may make any use of the land acquired by it for use as the right of way for its railroad, which, directly or indirectly, contributes to the safe, economical, and efficient operation of the road, and which does not interfere with the rights of property pertaining to the adjacent lands. Lewis Em. Dom.

584, 588 and cases there cited; Gudger v. Richmond & D. Co., 106 N. Car. 481, 43 Am. & Eng. R. Cas. 606; Railroad v. Deal, 90 N. Car. 110. The land here in dispute must be treated for the purposes of this case as secured to the appellee alone as an additional right of way in the heart of a city. The depot and other structures erected thereon afford such conveniences and facilities as a railroad company may be expected to provide for the transaction of its business in such locality. The land is used for purposes incidental and auxiliary to the transportation business authorized to be conducted on and over it; and as the appellant cannot complain of the exclusive character of the occupancy, the uses shown do not, in our opinion, constitute a diversion of the property from the purposes to which it has been devoted. The conclusion is that the evidence does not support the claim that there has been a misuser by the appellee of the right of way in question. The right to maintain the action is based upon the alleged misuser. It is not intended to be admitted that, if such misuser had been shown, the appellant would be entitled to a judgment in the statutory action in the nature of ejectment for land of which it could not hold possession, be-cause, according to its own claim, the appellee and other railroad companies were entitled to possess it and use it as a right of way. Cincinnati v. White, 6 Pet. (U.S.) 431; 3 Brick. Dig. p. 324, $ 27.

Affirmed.

Rights of Railroad Company in Purchased Right of Way.-The right secured by a railroad company in a right of way by purchase carries with it the same rights, privileges and exemptions which attach when the same right is secured by eminent domain. i Rorer on Railroads, 313; Conwell 7. Springfield, etc. R. Co., 81 Ill. 232; Junction R. Co. v. Ruggles, 7 Ohio St. 1. The power to purchase lands necessary to the carrying out of their objects is a power incident to all corporations unless they are specially restrained by their charters or by statute. 2 Kent's Com. 281; Nicholl v. New York, etc. R. Co.. 13 N. Y. 137; Co. Lit. 44a; 1 Kyd. on Corp. 76, 78, 108; First Parish v. Cole, 3 Pick. (Mass.) 232; Page 7. Heineberg, 40 Vt. 81; 94 Am. Dec. 378. A company acquiring a right of way by private grant is not released from its statutory obligations as to fencing, etc., even

though nothing is said of it in the deed. Polar v. New York Cent. R. Co., 16 N. Y. 476; Clarke v. Rochester, etc. R. Co., 18 Barb. (N. Y.) 350. The right to cast smoke, cinders etc., upon other parts of the way passes to the grantee of a right of way by necessary implication, being an incident to the operation of the railroad. Chicago, etc., R. Co. v. Smith, 111 Ill. 363, 29 Am. & Eng. R. Cas. 558.

Where land is conveyed to a railroad company for railroad purposes, it is presumed that all the contingent damages, which would have been included in an assessment of damages by commissioners, were considered in determining the price. Norris v. Vermont Cent. R. Co., 28 Vt. 99. And the same duty as to the construction of its road and the building of necessary culverts, embankments, fences, etc., rests upon the company as would have existed if the land had been taken under the right of eminent domain. Hortsman v. Covington, etc. R. Co., 18 B. Mon. (Ky.) 218; Smith v. New York, etc., R. Co., 63 N. Y. 58.

A grant of the right of way carries with it the right to construct suitable culverts; and the right to construct such culverts includes the power to cut the necessary ditches to carry the water into them, although such ditches may extend beyond the limits of the right of way. Babcock v. Western R. Co., 9 Met. (Mass.) 553; 43 Am. Dec. 411; Boothby v. Androscoggin, etc., R. Co., 51 Me. 318; Rood v. New York, etc., R. Co., 18 Barb. (N. Y.) 80; Horstman v. Lexington, etc., R. Co., 18 B. Mon. (Ky.) 218; Conwell v. Springfield, etc., R. Co., 8i Ill. 232. Compare, however, Kansas Pac. R. Co. v. Mihlman, 17 Kan. 224; 9 Am. Ry. Rep. 428. One who, by deed, grants a right of way over his premises impliedly waives all rights to damages, not reserved in the deed occasioned by the removal of timber or other obstructions in the line of the right of way. Houston, etc., R. Co. v. McKinney, 55 Tex. 176, 8 Am. & Eng. R. Cas. 723. But in Vermilya v. Chicago, etc., R. Co., 66 Iowa 606, 23 Am. & Eng. R. Cas. 108, it is said that a grant of a right of way does not authorize the company to take sand from the land without making compensation to the owner.

The grant does not release the company from liability for damages caused from its negligent construction of the road. Houston, etc., R. Co. v. Adams, 58 Tex. 476. When the grant is expressed to be for a particular use neither the grantor nor any claiming under him can object to the use and recover damages resulting therefrom. Chicago, etc., R. Co. v. Smith, 111 Ill. 363, 29 Am. & Eng. R. Cas. 558. As to the laying of side tracks, see Indianapolis, etc., R. Co. v. Rayl, 69 Ind. 424, 3 Am. & Eng. R. Cas. 182. That a grant conveys by implication what is necessary to its enjoyment, see Chicago, etc., R. Co. v. Smith, 111 Ill. 363, 29 Am. & Eng. R. Cas. 558; Riedinger v. Marquette, etc., R. Co., 62 Mich. 29, 29 Am. & Eng. R. Cas. 611.

Grant of a right of way gives no license to overflow grantor's land by the unskillful construction of a levee. St. Louis, etc. R. Co. v. Morris, 35 Ark. 622, 5 Am. & Eng. R. Cas. 48. The execution of a contract for the right of way by the land owner gives the company an immediate right of entry; and if indefinite as to location, the company has the right of selection. Burrow v. Terre Haute, etc. R. Co., 107 Índ. 432, 29 Am. & Eng. R. Cas. 574.

See as to title acquired by railroad company under conveyance of right of way by land owner, note, 30 Am. & Eng. R. Cas. 303.

KREMER

ข.

CHICAGO, MILWAUKEE & ST. PAUL R. Co.

(Minnesota Supreme Court, Fuly 22, 1892.)

Entry on Land Under License -Revocation-Delay. Where a railway company enters upon land and constructs its road under the mere license of the owner of the land, such license is a protection for acts done under it; but upon its revocation the company may be ejected from the premises, unless the right to continue to occupy the same is acquired by purchase or condemnation. The land owner's right of action is not impaired by mere inaction or delay in bringing suit, within the statutory time.

Eminent Domain-Damages-Injury to Entire Tract.-In condemnation proceedings, the owner is entitled to have his compensation in damages assessed for the injury to the entire tract owned by him, of which the land appropriated by the company is a part, as of the time of the assessment of damages. It is for the jury to determine the extent of the injury as affecting different portions of such tract.

Application for Assessment of Damages-Motion Addressed to Discretion of Court. Where, in an action for the recovery of land unlawfully occupied by a railway company, the latter, in its answer, asks for an assessment of the damages for the appropriation thereof, under the statute, it is entitled to abandon or dismiss such application at any time before the final submission of the case. But where it fails to assert such right and asks to amend its answer, or for leave to dismiss or abandon such application for an assessment of damages, and the motion is treated and disposed of as one addressed to the discretion of the court, it will be so treated in this court, and the decision of the trial court will not be interfered with, except in case of an abuse of discretion.

APPEAL from Faribault District Court.

Ejectment. Judgment for plaintiff. Defendant appeals. A. C. Dunn (John W. Cary and H. H. Field, of counsel), for appellant.

Daniel Buck and D. F. Morgan, for respondent.

Case stated.

VANDERBURGH, J.-The plaintiff alleges that he is and for more than three years has been, the owner of a tract of land in Blue Earth county, containing upwards of 1,300 acres, which is traversed by the defendant's railway. The railway was constructed upon and over, the land before plaintiff acquired title; but it never obtained the lawful right so to do, by condemnation proceedings or otherwise, and has never paid any compensation for the land occupied by it, or for the damages caused by the construction and operation of its railway thereon. He therefore seeks

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by this action to recover possession, to eject the defendant from the premises, and for damages caused by the occupation thereof. The answer takes issue upon the allegations of plaintiff's ownership, and also alleges that the predecessors in interest of the defendant entered upon and built the railroad over and across the said lands with the full knowledge, consent and acquiescence of the then owners of the same, and that, ever since its purchase and operation of the said railroad, it has continued to use and occupy the said strip of land for its railway purposes until the commencement of this action, without notice from the plaintiff or other persons that its use and occupation thereof was in any manner unlawful, and without objection from the plaintiff or other persons that the piece of railroad built and constructed as aforesaid is a part of its line of railway from Wells to Mankato, and is necessary to the proper enjoyment of its rights and franchises, and to the discharge of its duty to the public as a carrier of freight and passengers." It also alleges that it is ready and willing to make compensation for the damages arising from the appropriation of the land in question, and therefore asks that they be ascertained as provided by the statute by the jury in this action, if the plaintiff on the trial shall establish his right to recover the said strip of land.

Revocation

1. The evidence sustained the allegations of plaintiff's title and ownership, and there was no evidence in the case tending to show that defendant's occupancy of the premises was lawful, except that the same was by Licensethe license, express or implied, of the grantors of Delay. the plaintiff. If the original entry or subsequent occupancy of the premises, to the time of plaintiff's purchase was by the license of the grantors of the plaintiff, such license is a protection for any acts done under it; and in any event the plaintiff would have no right of action for use and occupation or trespasses committed by defendant in the construction or operation of its road thereon prior to his purchase, unless he had acquired such right by assignment. It did not pass by the conveyance of the land. But such license, if any there was, was subject to be revoked at any time by the licensor; and thereafter the defendant would become a trespasser, and the land owner would be entitled to his remedy, either in trespass or ejectment, as he might be advised. The sale and conveyance of the land to the plaintiff was by itself a revocation of any previous license, and the plaintiff had a right immediately thereafter to bring his action to recover the possession. Eggleston v. New York & H. R. Co., 35 Barb. (N. Y.) 162; Miller v. Auburn & S. R..